Page:Federal Reporter, 1st Series, Volume 7.djvu/641

 BANE OF HONTBEAL V. THAYEB. 629 �issued the certificates honestly and in good faith, believing be bad the right to do so, this is a perfect defence, but must be pleaded by way of answer. The petition, being taken as true, does not show Buch a state of facts. �3. The second oount omita the charge of fraud contained in the first, and is founded upon the theory that the repre- sentations contained in the certificates were warranties upon •which the plaintiff bas the right to sue and recover. In order to sustain the sufficiency of this count it would be necessary to hold (1) that the representations contained in the certificates were warranties upon which the payee, the Joliet Iron & Steel Company, could have maintained an ac- tion; and (2) that the plaintiff, as a subsequent purcbaser of the paper without an assignaient, became entitled to maintain an action upon the warranty. As to the first proposition, it is not averred that the Joliet Iron & Steel Company relied upon the representations, or were in anywise deceived or defrauded thereby. On the contrary, it would seem that that Company must have known all the facts known to the defendant, as it is fairly to be inferred from the face of the certificates that they were given to said company in payment for iron rails furnished by it. Such being the fact, it is mani- fest that the company could not have maintained an action upon the warranty. �A right of action upon a warranty, if it be assignable, is certainly not negotiable in the sense that the assignee may take a better right than the assignor possessed ; and it f ol- lows from this that the plaintiff, even if regarded as the assignee of the right of action upon the warranty, can have no better right than its assignor ; and since the petition does not show that the assignor bad any right of action upon the warranty, it does not show any right of action in the plaintiff. �As to the second proposition, we know of no authority in its support. A warranty is addressed to some particular per- son, and ordinarily that person alone can sue upon it. Under the very broad statute of lowa on the subject of the assign- ment of causes of action it may be assignable, but that it goes without assignment in a case like the present we think cannot ��� �